Salby v Macquarie University [2017] FCA 67 | Case summary

Salby v Macquarie University [2017] FCA 67 | Case summary | Zoe

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The preparation of the appeal for hearing 6 The preparation of Dr Salby's appeal for hearing has not proved an easy task. Attempts to identify the questions in need of resolution on appeal and the factual basis upon which those questions were to be resolved confronted difficulty. Some difficulties were encountered by Dr Salby being overseas and some difficulties were encountered by reason of the form in which he had drafted his Notice of Appeal. 7 Ultimately such difficulties were overcome. But the background should nevertheless be briefly set forth. 8 The Notice of Appeal was filed in this Court in March 2016. A directions hearing was held on 20 April 2016 when Dr Salby appeared unrepresented. Concern was expressed as to the form of that Notice of Appeal. Directions were then made for the filing by 11 May 2016 of an Amended Notice of Appeal, an Outline of Submissions and a copy of all evidence upon which Dr Salby sought to rely. Those directions were made with a view to enabling an unrepresented Appellant an opportunity more freely to articulate his case on appeal and potential deficiencies in the formulation of Grounds of Appeal, it was hoped, could possibly be cured by written submissions. The timing of those directions also sought to accommodate the fact that Dr Salby had informed the Court that he would be travelling overseas "during June and July" and would be departing on 25 May 2016. 9 An Amended Notice of Appeal was filed on 11 May 2016. 10 The matter came back before the Court for further directions on 13 May, 29 June and 20 July 2016. 11 Given the fact that Dr Salby had previously advised the Court that he would be overseas, he did not attend the directions hearings held in June or July 2016. Nor did he arrange for anyone else to appear on his behalf. 12 On 18 August 2016 the Respondents filed an Interlocutory Application seeking orders (inter alia) that the appeal be dismissed pursuant to s 25(2B)(ba) and/or s 25(2B)(bb) or, in the alternative, an order that judgment be given against Dr Salby pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the "Federal Court Act"). That Interlocutory Application was returnable on 8 September 2016. 13 Dr Salby returned to Australia in or around late July 2016. He opposed the orders sought in the Interlocutory Application. Counsel for the University did not oppose a course whereby the appeal should proceed to hearing. The relief previously sought in the Interlocutory Application was pressed only to the extent that it sought an order for the summary dismissal of the appeal pursuant to s 31A(2) of the Federal Court Act. Counsel for the University was content to have that application heard at the same time as the hearing of the appeal. 14 The Grounds of Appeal as set forth in the Amended Notice of Appeal still failed properly to address the Grounds upon which Dr Salby sought to contend that the Federal Circuit Court Judge committed appellable error. But such formalities can be left to one side. The substance of Dr Salby's challenges to the decision of the Federal Circuit Court Judge focussed upon alleged breach of contract and contraventions of the Fair Work Act 2009 (Cth) (the "Fair Work Act"). 15 Reading the Amended Grounds of Appeal and Dr Salby's Particularized submissions together, it emerges that he seeks to contend that appellable error is to be found in: the manner in which the terms of his employment contract were determined; the failure to conclude that there was a breach of a statutory duty to register an Australian Workplace Agreement; the manner in which access to a "Startup Fund" was determined; the failure to conclude that the University had engaged in misleading conduct and had breached a duty of care; the failure to conclude that the University had breached the terms of the employment contract; the failure to conclude that "adverse action" had been taken against Dr Salby within the meaning of s 340 of the Fair Work Act; and a breach of a duty of procedural fairness by both the University and the primary Judge. The manner in which Dr Salby sought to develop these Grounds of Appeal traversed both questions of law and questions of fact. The Federal Circuit Court Judge addressed each of the same questions when advanced before that Court in a very comprehensive judgment. That which ultimately doomed Dr Salby's case was the manner in which the facts had been resolved against him. Rather than Dr Salby prevailing in his attempt to present himself as a person who had been denied both contractual entitlements and protections afforded by the Fair Work Act, it emerged in the proceeding before the Federal Circuit Court Judge (and on appeal) that Dr Salby had refused formal directions to teach a course which had been properly assigned to him and had been properly charged with and found to have engaged in misconduct.

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An appellate jurisdiction to correct error 16 Many of the errors relied upon by Dr Salby overlapped and intertwined. But nothing turns on that. It is the substance of the arguments advanced on behalf of Dr Salby that matters - not the order or the form in which the arguments were expressed. 17 But something should be said in respect to the manner in which Dr Salby advanced his arguments on appeal. 18 His case on appeal had all the hallmarks of entirely putting to one side the hearing before the primary Judge and the findings of fact made by that Court and thereafter seeking to re-run on appeal the same arguments upon the basis of (largely) the same facts in the hope that a different factual and/or legal outcome may prevail on appeal. 19 Such a manner of conducting an appeal is not permissible. 20 The jurisdiction of this Court is unquestionably an appellate jurisdiction: Federal Court Act, s 24(1)(d). And an appeal is in the nature of a re-hearing: Farrington v Deputy Commissioner of Taxation [2002] FCA 1013, (2002) 50 ATR 429 per Kenny J; Kowalski v Domestic Violence Crisis Service [2005] FCA 12 at [51] per Madgwick J. See also: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, (2001) 117 FCR 424. 21 But the jurisdiction forever remains an appellate jurisdiction which is exercised for the correction of error: Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC 13 at [88], (2011) 203 IR 78 at 99 per Flick J. In undertaking that task, some of the principles to be applied were there summarised as follows: [89] … the court is to determine whether the findings made are correct but it is not the function of the appellate court "merely to substitute its own view, as if it were again performing the function of the trial judge": cf Wade v Australian Railway Historical Society (South Australian Division) (t/as Steamranger) [2000] SASC 233 at [38], 77 SASR 221 at 227 per Doyle CJ (Duggan and Lander JJ concurring). Nor is it appropriate to invite an appellate court "simply to revisit the relevant evidence … and then contend that the court should reach a different conclusion … In an appeal by way of rehearing, error must be demonstrated for the appellate court to be entitled to disturb the decision of the primary decision-maker …": cf Tasmanian Sandstone Quarries Pty Ltd v Legalcom Pty Ltd [2010] SASFC 6 at [34] per Gray J (Nyland and Kourakis JJ agreeing). See also: [2011] FCAFC 13 at [14] to [23], (2011) 203 IR at 82 to 84 per Buchanan J. And, when considering the circumstances in which an appellate court should upset factual conclusions made by a primary judge, French CJ, Bell, Keane, Nettle and Gordon JJ in Robinson Helicopter Co Inc v McDermott [2016] HCA 22, (2016) 90 ALJR 679 at 686 to 687 have most recently observed: [43] The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences". In this case, they were not … 22 Notwithstanding this important constraint upon the appellate function of the Court presently being exercised, Dr Salby treated the outing before the Federal Circuit Court as but a "preliminary skirmish" and essentially submitted that appellable error was exposed because a different view should now be reached. He really treated the findings of fact made by the primary Judge as not having been made: cf. Fox v Percy [2003] HCA 22 at [24] to [26], (2003) 214 CLR 118 at 126 to 127 per Gleeson CJ, Gummow and Kirby JJ. 23 Considerable latitude was nevertheless extended to Dr Salby to develop his arguments both by reason of his being unrepresented and the importance of the adverse factual findings which he had to overturn if his appeal was to have any prospect of success. It is nevertheless a series of underlying mixed legal and factual conclusions which doom his appeal to failure. These centrally relevant conclusions of the primary Judge are his conclusions as to: the absence of any breach by the University of the terms of Dr Salby's contract of employment; there being no breach of any entitlement of Dr Salby to monies from what was known as his "Startup Fund", even assuming there to be a contractual entitlement to such monies; there being no "misrepresentation" on the part of the University; and the action taken by the University not falling within the reach of s 340 of the Fair Work Act for the simple reason that any such action was not taken "because" Dr Salby sought to exercise a "workplace right", even assuming that any of the "rights" sought to be exercised by Dr Salby constituted "workplace rights". The argument as to the University having made a series of "misrepresentations" is but one instance of where Dr Salby seeks to "re-characterise" his arguments on appeal from those previously relied upon. But if that difficulty be again left to one side, an insurmountable difficulty to the argument now having any success is (for example): the fact that Dr Salby has himself seriously misrepresented the primary facts and failed to establish any "misrepresentation" that has occasioned him any loss or damage. 24 Whatever approach is pursued, it is concluded that the findings made by the primary Judge were findings open to be made on the facts, and no appellable error has been exposed. Even if it were permissible for this Court to make its own findings of fact, untrammelled by the need to identify appellable error in those facts as found by the primary Judge, no different conclusion would have been reached. 25 Considerable latitude was also extended to Dr Salby in making reference to materials that were not before the primary Judge and in advancing arguments (or, at the very least, substantially re-characterising arguments) that were not previously advanced. 26 By reference to the manner in which the appeal was conducted, there is much to be said for the primary Judge's comments that "it did not help that [Dr Salby] cast himself in the role of Don Quixote, and spent much of his time tilting at windmills": [2016] FCCA 3 at [127]. 27 None of the arguments advanced by Dr Salby have any merit.

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THE CONTRACT OF EMPLOYMENT 28 On 18 January 2008 the University forwarded to Dr Salby an offer of appointment. The letter set forth (inter alia) his remuneration and hours of work and also stated: Dear Professor Salby On behalf of Macquarie University (University) I am pleased to offer you appointment as Professor of Climate Risk, within the Division of Environmental and Life Sciences. ... 2. Remuneration Your commencing base salary will be $130,581 gross per annum payable in fortnightly instalments by electronic funds transfer to an account, nominated by you, at an Australian based financial institution. This salary is equivalent to the Academic Staff salary for Level E, Step 2. You will also be paid a non-superannuable salary loading of 25% of your base salary i.e., $32,645 gross per annum. The continuation and quantum of this loading will be assessed annually based on your performance against agreed performance criteria and in accordance with the University's Salary Loading policy. To the extent permitted by law, the University may deduct from your salary any overpayments of salary. The Guarantee of Basic Rates of Pay in Part 7, Division 2, Subdivision B of the Workplace Relations Act 1996 may be satisfied over a period of 12 months. Any entitlement you may have to superannuation under any industrial instrument will include the minimum level of contributions which the University must make so as not to be liable to pay a charge under the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Guarantee Charge Act 1992 (Cth). If you require further information please contact Moya Sue Tin on ext 9773 or email … … 4. Supervisor You will report to the Dean, Division Environmental and Life Sciences, or other person nominated by the University from time to time, who will be your supervisor. You will work under the direction of your supervisor. 6. Australian Workplace Agreement Your employment with the University is subject to your acceptance of the attached Australian Workplace Agreement (AWA). The terms and conditions of your employment will be as set out in this letter, the attached terms sheet and the AWA. You are provided with 7 days from the date you receive the AWA to consider the AWA. 7. Entire Agreement 7.1 This letter of offer, the attached Terms Sheet and AWA: i. constitutes the entire agreement between the parties as to your employment; and ii. in relation to your employment, supersedes any prior understanding or agreement between the parties and any prior condition, warranty, indemnity or representation imposed, given or made by a party. 7.2 Without limiting clause 7.1: i. any policies of the University do not form part of this agreement and are not intended to be contractual in nature; and ii. in entering this agreement, you acknowledge that you are not relying on any representations by, or on behalf of, the University unless expressly incorporated into this letter of offer, the attached Terms Sheet or the AWA. If you wish to accept this offer, please sign and return the attached Acceptance Form and signed Australian Workplace Agreement to Charlotte Simon, Human Resources, as soon as possible. … It appears that on 5 February 2008 Dr Salby signed the following document headed "Acceptance of Letter of Offer and Terms Sheet": I have read this letter, dated 18 January 2008, the Terms Sheet and the AWA and agree to accept the offer made in this letter, the Terms Sheet and the attached AWA. The "Terms Sheet" as referred to in clause 6 of the letter dated 18 January 2008 and as signed by Dr Salby stated in part as follows: This Terms Sheet together with the attached letter of offer set out the terms and conditions of your employment with Macquarie University (University). 1. Your Duties 1.1 You must: (a) perform to the best of your abilities and knowledge the duties assigned to you by the University from time to time, whether during or outside the University's business hours and at such places as the University requires. The duties will be as agreed with your manager and any other duties which may be assigned to you by the University which are within your skill and competence; (b) act in the University's best interests; (c) comply with all lawful directions of the University; and (d) comply with all laws and the rules and regulations of external agencies applicable to your position and the duties assigned to you. 29 Potential difficulties emerged because: although there was in evidence a copy of the Australian Workplace Agreement signed by Dr Salby, there was no evidence as to when a copy of the executed Agreement was given to the University; it only emerged in 2011 that the University had not signed or registered the Australian Workplace Agreement; and by then it was too late to register the Australian Workplace Agreement. 30 The position adopted by the University was that: the Australian Workplace Agreement, albeit not having any statutory force, nevertheless operated as part of a common law contract - to the extent that it could so operate; the relevant industrial agreement that was applicable was the Macquarie University Academic Staff Enterprise Agreement 2006-2009 (the "2009 Agreement") and, of more immediate relevance to the facts, the Macquarie University Academic Staff Enterprise Agreement 2011 (the "2011 Agreement"); and the terms of both the 2009 and 2011 Enterprise Agreements were binding and could not be excluded by any contrary contractual provision. 31 Dr Salby did not contend that the Australian Workplace Agreement had any statutory force. But he did contend that he was entitled to benefits conferred by the Higher Education Industry - Academic Staff Award 2010 (the "Academic Staff Award"). 32 Each of these competing contentions was resolved by the primary Judge. No appellable error is discernible in any of the conclusions expressed in the judgment the subject of appeal. But brief reference should be made to the principal sources of disagreement.

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The 2009 and 2011 Enterprise Agreements 33 In seeking to resist the University's contention that the 2009 Agreement was binding, Dr Salby relied upon the following exclusion in the definition in cl 2.1 of the 2009 Agreement, namely: Exempt Staff Member means either: (a) a General Staff Member who is being paid a salary in excess of the salary for Level 10, Step 10 as specified in Schedule 1; or (b) an Academic Staff Member, employed as at the date of lodgement of this Agreement, on a salary in excess of 133% of the salary for an Academic Level E, Step 2 as specified in Schedule 1; or (c) an Academic Staff Member whose salary, after the date of lodgement of this Agreement, increases to a salary in excess of 115% of the salary for an Academic Level E, Step 2 as specified in Schedule 1; or (d) an Academic Staff Member who commences employment with the University after the date of lodgement of this Agreement on a salary in excess of 115% of the salary for an Academic Level E, Step 2 as specified in Schedule 1. Dr Salby's contention was that the "non-superannuable salary loading of 25%" had the consequence that he was an "Exempt Staff Member" within the definition in the 2009 Agreement. It was a contention which struck resonance in the following e-mail forwarded to him on 15 January 2008 by Mr Nick Crowley from Human Resources at the University which stated in part as follows (without alteration): UNFORTUNATELY, THE OFFER SENT TO YOU BY SUE CONTAINED SOME ERRORS, (ASIDE FROM THOSE ISSUES ADDRESSED ABOVE). THE LEVEL OF SALARY THAT HAS BEEN OFFERED MEANS THAT YOU ARE NOT COVERED BY THE ENTERPRISE AGREEMENT. THE AGREEMENT HAS AN EXCEMPTION (WHICH CAN BE FOUND IN 2.1 DEFINITIONS) WHICH MEANS IT DOES NOT APPLY TO STAFF WHO EARN IN EXCESS OF 15% ABOVE THE MAXIMUM SALARY FOR A PROFESSOR WHICH OBVIOUSLY INCLUDES YOU). But this contention, with respect, is rejected. For the purposes of para (d) of the definition, the "non-superannuable salary loading of 25%" most probably formed no part of Dr Salby's "salary". That construction of the 2009 Agreement is founded upon the interpretation of the term "salary" being confined to what the letter of offer referred to as a "base salary" and as excluding what that letter refers to as a "loading". The conclusion also gathers some support from the fact that the terms of the 2011 Agreement expressly provided in cl 2.1 as follows: Exempt Staff Member means an Academic Staff Member who is being paid a Base Salary (excluding loadings) in excess of 115% of the salary for an Academic Level E, Step 2 as specified in Schedule 1. The exclusion in this definition of "loadings" made it even more self-evident that Dr Salby did not fall within this definition of an "Exempt Staff Member". 34 Whatever merit Dr Salby's argument may have had in respect to the 2009 Agreement, however, the argument has no merit in respect to the 2011 Agreement. 35 Although the conclusion of the primary Judge was most probably correct in respect to Dr Salby's employment being covered by the 2009 Agreement ([2016] FCCA 3 at [94]), little of present relevance turns upon that conclusion. It was the 2011 Agreement which assumed primary importance, being the Agreement in place as at the date of termination of Dr Salby's employment. And the primary Judge was correct in concluding that the 2011 Agreement applied: [2016] FCCA 3 at [94] and [100]. He was also correct in concluding that the 2011 Agreement applied "as a matter of law": [2016] FCCA 3 at [100].

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The absence of any disadvantage 36 The University further contended that nothing turned on the application of the 2009 or 2011 Enterprise Agreements to Dr Salby's contract of employment. The terms of those two Agreements, it was contended, provided for similar conditions in most respects - and more generous conditions in other respects - to those found in the unregistered Australian Workplace Agreement. 37 That submission on behalf of the University is accepted. 38 The terms of the Agreements of immediate relevance were those relating to: academic workload; dispute resolution; and disciplinary proceedings. 39 The primary Judge reviewed each of the provisions of the 2011 Agreement and those of the Australian Workplace Agreement and addressed Dr Salby's submissions as to the former provisions being inferior to those of the latter. He referred to the fact that the Australian Workplace Agreement had not been registered and went on to express his conclusions as to the comparison undertaken as follows: [105] It is not necessary to make any finding of fault in relation to the fact that the Unregistered AWA was not signed or lodged. This is because Dr Salby's Unregistered AWA and the 2009 and 2011 EBA were in many ways similar, and in some ways the 2009 and 2011 EBAs were more beneficial. For example, they contained similar provisions in respect of leave and redundancy entitlements, outside employment, intellectual property and the ability for an academic to progress a dispute to the Australian Industrial Relations Commission (AIRC) or the Fair Work Commission (as the case may be). The disciplinary procedures for unsatisfactory performance and misconduct in the Unregistered AWA were significantly less prescriptive, with the result that it is at least arguable that the disciplinary procedures set out in each of the 2009 EBA and the 2011 EBA were more beneficial to employees than those set out in the Unregistered AWA ... 40 Much the same comparison as was apparently undertaken before the Federal Circuit Court was repeated on appeal. But the same conclusion is reached. Moreover, no appellable error is discernible in the conclusions expressed by the primary Judge.

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A contractual entitlement? 53 Dr Salby's argument in respect to what he termed the "Startup Package Agreement" focussed upon: a statement made by the Associate Dean (Associate Professor Kevin McCracken) in an email to Dr Salby in February 2008 confirming that Dr Salby would forward "a request for set-up research funds of approximately $300K" and (in particular) Associate Professor McCracken's statement that he "can confirm a Startup Package of that magnitude (as previously discussed by Professor Deane) will be available"; and an assertion that the University "chronically withheld the resources which they had agreed to provide" and an assertion that the University later "withdrew the pleaded resources altogether". In response to the Associate Dean's email, Dr Salby responded on 18 February 2008 stating that "the package looks basically OK (a bit over $320K)…". 54 There are difficulties with accepting any submission advanced on behalf of Dr Salby that any withholding of the Startup Fund was a breach of his employment contract. There was no reference to any such Fund in the terms of his employment contract and the Letter of Offer (which was accepted by Dr Salby) expressly stated in cl 7.1(i) that the Letter of Offer "constitutes the entire agreement" between the parties "as to your employment". There are also difficulties in accepting any submission that the offer of a Startup Fund and his acceptance of that Fund was an independent source of contractual rights. And any entitlement to the monies made available was not on any view an entitlement to use those monies in such a manner as Dr Salby saw fit. At all times, Dr Salby accepted that access to the Fund was subject to applicable policies and protocols. There was thus the following exchange with his cross-examiner: By 2013, you knew that in respect of spending money from the start-up package, you had to comply with the applicable university policies and procedures that were applicable to the particular activity that you were seeking to undertake in respect to the expenditure; correct? - … being applicable, correct. But there was a dispute as to whether Dr Salby in fact complied with the constraints imposed upon access to that Fund as is evident in (for example) the following exchange: And you knew that there [were] very specific procedures that you had to follow in order to access the start-up package, including by Concur expense reports, Concur expense forms and the like; correct? - I followed the procedures that I was instructed to do and complied with them. And you followed none of those procedures - ? - Really? 55 It should also be presently noted that there are also difficulties with characterising any statement made in respect to the Startup Fund as misleading conduct. There is no basis for concluding that it was misleading when made, or for concluding that there was no legitimate basis upon which any such statement could have been made as to what would be available in the future. 56 But it is unnecessary to reach any conclusion as to whether the Startup Fund formed either part of Dr Salby's contract of employment or constituted a separate agreement which was contractually enforceable. Even if it were, Dr Salby has failed to establish any breach of the agreement - however it may be described. The allegation of a wrongful withholding of monies by the University was an argument developed separately by Dr Salby on a number of occasions, including when addressing his arguments that the University engaged in misleading and deceptive conduct. The absence of any wrongful withholding of monies can best be addressed when resolving that separate argument.

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Misleading statements in trade or commerce 67 Left to one side is a submission advanced on behalf of the University that reliance upon the Trade Practices Act was misplaced because liability attaches to misleading statements made "in" trade or commerce. 68 It is mentioned lest it be otherwise thought that the submission has been overlooked. 69 In the University's submission none of the statements now relied upon by Dr Salby were made "in" trade or commerce: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 603 to 604. Mason CJ, Deane, Dawson and Gaudron JJ there cautioned as to the limits of s 52 as follows: … it is plain that s 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an unidentifiable section of the public. In some areas, the dividing line between what is and what is not conduct "in trade or commerce" may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character. 70 The primary Judge addressed the same submission and discussed other authorities which canvassed the extent to which s 52 could be applied to the employment context: [2016] FCCA 3 at [367] to [383]. Among other conclusions reached, the primary Judge held that Dr Salby had "failed to establish that he suffered any damage as a result of the alleged misleading and deceptive conduct": [2016] FCCA 3 at [387]. 71 Without expressing any disagreement with the conclusions reached by the primary Judge, it is considered that the more prudent course is to address the factual merits of the representations now relied upon by Dr Salby.

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The reduction in Dr Salby's role 72 On appeal, Dr Salby maintained that the advertisement for the position at the University was misleading in that it claimed that: the position had a research focus; the workload assignment for 2008 stated that he was to develop a new Honours Unit; his performance would be evaluated through the "Performance Development Review" process (often abbreviated to PDR); and the role would be reinforced by the Startup Fund. These are the various "misrepresentations" as they can be gleaned from Dr Salby's written submissions. 73 These "misrepresentations" are drawn from a variety of sources, including the advertisement for the position to which Dr Salby initially applied, and a document headed "100-Day Report to Council and Staff" dated May 2009. Included within the advertisement, for example, were the following statements: The appointees will contribute to the supervision of postgraduate students, maintain an active research program, and contribute to the teaching, administrative and outreach activities of their Department and Division. Relative contributions to teaching vs other activities will be subject to negotiation between successful applicants and the relevant Department heads. Included within the Report, by way of further example, was the following statement: 1. The main goal At age 50, Macquarie will be among the top eight research universities in Australia and among the top 200 in the world. Research excellence is the right goal because education and research are inextricably linked in world-class universities. Academics who are doing scholarly work at the cutting edge of their disciplines make the best teachers. They convey the excitement of their fields to their students and they are less likely to become jaded than teachers who are not research-active. Instead of teaching from books written by others, research-active academics are the ones who actually write the books. In a research university, both teachers and students are actively involved in the pursuit of knowledge. For this reason, a research university provides a special type of education. Its goal is not just to teach facts and skills but to open students' minds to life-long enquiry. 74 The case sought to be advanced on appeal by Dr Salby was that representations were made during the recruitment process but were later "ignored". After he arrived at the University, Dr Salby maintained in his Particularized submissions that "Macquarie's operation of his employment contradicted these fundamental representations of his role" and that he was "notified by legacy staff that teaching postgraduate students for research would not be recognized as part of his duties". 75 The difficulty with this part of his appeal is at least twofold. 76 First, as already noted, the primary Judge correctly concluded that Dr Salby had not "identified with any precision the specific statement which he says was misleading": [2016] FCCA 3 at [343]. The statements now relied upon by Dr Salby were identified for the first time on appeal. 77 Second, other than by now identifying the particular statements upon which he sought to rely on appeal, Dr Salby did not proceed further and seek to establish that any of the statements as then made were misleading: cf. World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 201 per Brennan J (as his Honour then was). 78 It is the latter which (perhaps) creates the greatest problem for Dr Salby. Although there is a necessity to identify the particular representation and the source of that representation with some specificity, it may equally be readily accepted that Dr Salby had long agitated what he saw as a reduction of his role within the Faculty and the University. At least from his perspective, he saw his role and functions within the University in a vastly different way to that envisaged by the University. But to agitate a more generally expressed source of discontent is no substitute for the necessity to identify each statement which is claimed to be a misrepresentation. It is only when that is done that a respondent can meaningfully respond. 79 Reliance upon any "reduction" in role, be it perceived by Dr Salby or otherwise, is an argument which should have been clearly and expressly advanced at first instance. Findings could have been made as to the role Dr Salby was recruited to discharge and findings made as to whether any statements made in respect to that role were misleading. To now permit this argument to be advanced on appeal would be to prejudice the University. 80 The argument founded upon any "reduction" in the role of Dr Salby being misleading or deceptive is thus rejected.

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You are not covered by the EA 81 The source of the representation said to have been made by or on behalf of the University that Dr Salby was "not covered by the EA" was said to be found in the email from Mr Nick Crowley to Dr Salby on 15 January 2008 set out at [33] above. 82 That was the email that Dr Salby relied upon in part to develop his argument that the 2009 Agreement did not apply to him by reason of his position falling within the definition of an "Exempt Staff Member". That argument has not met with any meaningful success. The email, however, was separately relied upon in support of Dr Salby's present contention that it exposes a misrepresentation on the part of the University. In the email, Mr Crowley said in part that "THE AGREEMENT HAS AN EXCEMPTION [sic] … WHICH OBVIOUSLY INCLUDES YOU". And it is factually correct to say that the University thereafter stated that Dr Salby was bound to conform to the 2009 Agreement. 83 But reliance upon this email as the source of a misrepresentation creates on appeal some difficulty in circumstances where it was not specifically identified and relied upon at the initial hearing and (accordingly) not resolved by the primary Judge. 84 It also confronts further difficulty in that presently to rely upon this misrepresentation seems considerably to distort the facts upon which the misrepresentation assumes any relevance. 85 But one aspect of the case now sought to be advanced by Dr Salby on appeal (for example) is again his submission that the Australian Workplace Agreement conferred upon him a benefit that the University denied him. Clause 14 of that Agreement thus provided as follows: PERFORMANCE DEVELOPMENT AND REVIEW (1) The Officer will participate in the performance development and review system that applies to all staff of the University. (2) The performance development and review system will: (a) determine performance expectations over a nominated period of time; (b) provide feedback on the Officer's performance and that of her/his team or Division; (c) identify professional development needs and opportunities for the Officer; (d) identify assistance and support that will be provided to improve performance where it is assessed as requiring improvement; (e) assist in the determination of salary loading quantum; and (f) facilitate discussions of work issues that may impact on work performance. Assuming that this clause applied, Dr Salby thereafter maintains that he was denied the benefit of the "performance development and review system". 86 It is at this last step in his submission that Dr Salby misrepresents or distorts the facts as they unfolded. On his case, the Performance Development Review was not undertaken and he was thereafter denied a properly undertaken assessment of his performance. On his case, "Salby's managers refused to discuss Salby's prospective duties - even when Salby and Solicitor expressly sought discussion". One instance of this "refusal", according to Dr Salby, is to be found in an exchange of emails in mid-November 2012. On 16 November 2012 Dr Salby's solicitors emailed to Associate Professor Poulsen a letter referring to a meeting to be held on 21 November 2012 which stated (inter alia) as follows: I note that you wish to raise the following issues with my client at the meeting: 1. Refusal to teach ENV 267. 2. Failure to comply with a reasonable request regarding sick leave provisions. 3. Failure to comply with a reasonable request to submit the 2012 PDR. My client requires that you also include the following points on the agenda for discussion: 1. Professor Salby's teaching duties, in view of his research duties and appointment. 2. The operation of the AWA and the MQ enterprise agreement. 3. Fulfilment of MQ's start up package obligations. 4. Professor Salby's salary loading and performance reviews. "ENV 267" is the code for a particular academic subject. Associate Professor Poulsen's reply stated that the "meeting will only cover the three issues set down in the email to Professor Salby…". 87 What Dr Salby does not refer to is the evidence of Associate Professor Poulsen and the efforts he undertook in 2010 and 2011 to carry out a Performance Development Review. According to Associate Professor Poulsen, on 18 October 2010 "and at various other times throughout the remainder of 2010" he requested Dr Salby to provide "his 2010 PDR objectives". Dr Salby responded on 20 October 2010 that a meeting "would be scheduled in a couple of weeks". As events unfolded, Dr Salby was directed to attend a meeting on 9 November 2010. That meeting, in the Associate Professor's assessment, "became unproductive". A further meeting was held on 10 February 2011. Associate Professor Poulsen read out the questions as set forth in the "PDR" sheet and invited Dr Salby's response. The following exchange then occurred: Salby: "It's above your level and that of the Dean." Poulsen: "Let's discuss workloads." Salby: "No, I can decide what I want to do about teaching because it is written in my contract and AWA." Poulsen: "And where are your 2010 PDR goals?" Salby: "I am not going to do that!" A handwritten file note of the meeting was then sent by Associate Professor Poulsen to the Dean. The file note records that the meeting "became essentially a confrontational session" and an assessment that Dr Salby had not "in any way acted as a Professor within an academic department". 88 Such is not the entirety of the evidence. Further evidence, for example, included an email from Dr Salby to Associate Professor Poulsen on 6 August 2012 stating that he did not intend to comply with a request to resubmit his 2012 PDR objectives. Those objectives had been previously submitted but a request was made that they be resubmitted. No further 2012 PDR was resubmitted as requested. 89 This cavalcade of events was canvassed in great detail in the reasons for decision of the primary Judge: [2016] FCCA 3 at [159] to [186]. 90 If it were a course permitted to be pursued on appeal, a conclusion would be reached that it is simply factually incorrect for Dr Salby to assert that the University refused to undertake a Performance Development Review. His reliance, for example, upon the exchange of emails commencing on 16 November 2012 totally ignores the attempts made in 2010 and 2011. 91 The refusal by Dr Salby to attend meetings as requested was not confined to the meeting of relevance to his Performance Development Review. Only by way of example, Associate Professor Damian Gore sent an email to Dr Salby on 12 August 2010 headed "Honours meeting - non attendance". The text of the email stated: I understand that you did not attend the Faculty Honours meeting this morning. I remind you that this is your main administrative responsibility this semester, and it isn't too onerous. There are changes afoot in the Faculty Honours offerings, so would you please catch up on what you missed today and get back to me with the detail within a week? We need to be aware of possible changes and have input in order to help steer their direction. This was not an isolated occasion upon which Dr Salby failed to attend. Later, on 15 October 2010, Associate Professor Beggs emailed Associate Professor Gore and noted that Dr Salby's "presence was expected at this afternoon's Environmental Science Seminars" but that he was "not present at these important seminars". A "Final Request for Meeting" was forwarded by email by Associate Professor Poulsen to Dr Salby on 18 October 2010. The liberty has been taken to refer to these emails because it gives content to the more generally expressed concern on the part of the University as to Dr Salby's failure to attend meetings.

[18]

The availability of the Startup Fund 92 As a further instance of misleading conduct on the part of the University, Dr Salby maintained that a representation was made as to the availability of a Startup Fund and that the promised funds were "chronically withheld". 93 Irrespective of whether the Startup Fund conferred a contractual entitlement to monies, or whether any misleading statement had been made in respect to this fund, Dr Salby failed to establish that the funds were "chronically withheld". 94 The fact is that monies from that Fund were made available to Dr Salby and spent. The Federal Circuit Court Judge summarised his conclusions as follows: [284] Even though the Startup Fund was re-approved in July-August 2010, Dr Salby had the use of the Startup Fund at all times. This is corroborated by the facts that: a. during 2008, Dr Salby expended $14,107.25 of his Startup Fund; b. as at December 2009, Dr Salby had expended a further $7,120.57 of his Startup Fund; c. as at December 2010, Dr Salby had expended a further $5,630.39 of his Startup Fund; d. as at October 2011, Dr Salby had expended $120,225.28 of his Startup Fund; e. by 6 January 2012, Dr Salby had a remaining balance of $158,332.64 of his Startup Fund; f. as at March 2012, Dr Salby had a remaining balance of $149,828.85 of his Startup Fund; g. as at 31 December 2012, when Dr Salby's Startup Fund expired, he had spent $174,580.44 of that fund. There is no basis upon which any conclusion can be reached that these findings of fact were not findings open to be made. 95 Rather than the funds being withheld, they were being accessed by Dr Salby and payments made. Moreover, in July 2010 - some two and a half years after Dr Salby commenced employment with the University - a question arose as to whether such monies as had not then been expended should be continued. A memorandum was forwarded by the Faculty General Manager - Science (Mr Corben) to the Deputy Vice-Chancellor (Research) (Professor Piper) on 19 July 2010 recommending that Dr Salby could access a total of $300,000 and that such monies could be accessed until 31 December 2012. Professor Piper approved that recommendation and at that point of time Dr Salby raised no objection to the decisions being taken. When taken to this exchange of emails, the following exchange occurred between Dr Salby and his cross-examiner: And in the mid-part of the email chain, Mr [Corben] is writing to you and telling you that the start-up package was now being reaffirmed for you; correct? - Mmm. But he was saying to you that those funds need to be spent by 31 December 2012; correct? - That's what he said. Giving you two and a half years, effectively, to spend the money; correct? - Yes. If they delivered what was in the account, it would have been two and a half years. And you responded to that saying: Thanks, Phil. Perhaps now we can finally move forward, after which I can proceed with equipment acquisition. Correct? - Is that on the same page? The top of the page. It's up the top of the page? - Yes. Right. Right, at this point in time, you raise no opposition whatsoever to the fact that there was a time limit being put on the need to spend the funds; correct? - I put the requested start-up package update the same three years that we agreed to originally and it was still needed for me to rebuild my research program. Is the answer to my question, at this point in time, you took no objection in your email back to Mr [Corben] in relation to - ? - That's correct. Thank you? - Based on there being two and a half years to apply these resources. There was then no suggestion being raised by Dr Salby that the need to use the monies by 31 December 2012 was any termination of any existing entitlement. 96 No error is exposed in the findings or conclusions of the primary Judge in respect to the Startup Fund. The University did not engage in misleading conduct in withholding any monies that it represented would be available.

[23]

Sections 340 & 361 109 Section 340(1) of the Fair Work Act provides as follows: Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Section 361 provides as follows: Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 110 A major difficulty confronting Dr Salby was the finding of fact made by the primary Judge that none of the University witnesses were challenged in their evidence that they did not make any relevant decision "for the reasons, or for reasons including, the various workplace rights which Dr Salby exercised or proposed to exercise": [2016] FCCA 3 at [142]. Dr Salby failed to put any contrary proposition to any of the witnesses during their cross-examination: [2016] FCCA 3 at [143]. 111 It is the reason why action has been taken which determines whether conduct falls within s 340. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 at 252 French CJ and Kiefel J concluded: [19] Section 346 does not direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action. [20] In [Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32 at [60] to [61], (2012) 248 CLR 500 at 523], French CJ and Crennan J pointed out that it is erroneous to treat the onus imposed on the employer by s 361 as being heavier, or different, if adverse action is taken while an employee happens to be engaged in industrial activity. Their Honours said that it is incorrect to conclude that, because the employee's union position and activities were inextricably entwined with the adverse action, the employee was therefore immune, and protected, from the adverse action. Such an approach would destroy the balance between employers and employees which the Act seeks to attain and which is central to s 361. An employee's activity is not insulated from adverse action by an employer because it happens to be done in the course of an otherwise lawful industrial activity. 112 The conclusion of the primary Judge rejecting the claims that adverse action had been taken against Dr Salby is, accordingly, hardly surprising. No appellable error is discernible in the rejection of these claims. Dr Salby's submission that he was pursuing industrial action and making claims of adverse action did not "insulate" his conduct from such disciplinary action as the University saw fit to take. 113 A further difficulty confronting Dr Salby is the absence of any factual substratum supporting each of the matters which he sought to characterise as "workplace rights". Some of these matters should be briefly explored to see if any appellable error may emerge from a review of the evidence.

[24]

Removal of benefits - research travel 114 Dr Salby's reliance upon what he characterised as "an untimely rejection" of his travel arrangements as an instance of an "adverse action" was factually misplaced. 115 The travel arrangements in question had Dr Salby leaving Australia on 3 April 2013 and returning to Australia on 2 May 2013. His Application for Approval of Absence on Duty was dated 19 December 2012. 116 Thereafter the following steps occurred in respect to this Application, namely: 19 December 2012: Associate Professor Poulsen forwards the incomplete leave request to Ms Dana Junokas from Human Resources to seek guidance "given that it spanned a period of several weeks during semester 1 of 2013"; 20 December 2012: Associate Professor Poulsen receives response that there were "several complicating factors … which were unlikely to be resolved before the University closed down for Christmas on Friday 21 December 2012". Ms Junokas recommends that the application be handed to Associate Professor Beggs due to Associate Professor Poulsen's retirement as Head of Department; 21 December 2012: Dr Salby forwards an email to the University requesting it be passed "along ... to whomever is sitting on my travel paperwork, which was submitted under my startup package". The email continued on to state that "STA Travel has advised that my airbooking still has not been authorized…"; 17 January 2013: Associate Professor Beggs receives the request from the Executive Dean's office "to deal with in my capacity as Acting Head of Department"; and 18 January 2013: Associate Professor Beggs emails Dr Salby stating that "[b]ecause you did not email the Department's Administrative Team and let them know what days and times you were (or were not) available for a 30 minute meeting with me this week, I have not had the opportunity to consult with you regarding your 2013 teaching workload allocation". The email further stated that Associate Professor Beggs had been "informed by the Unit Convenor for this unit [ENVE216] that you and he have not discussed the unit schedule for this year, so that at this time no reorganisation of the schedule has been raised, discussed, or agreed between you and him". The email concluded by stating that he had decided not to approve the leave. This exchange was followed up by: Dr Salby emailing Associate Professor Beggs on 6 February 2013 stating that "[a]t this juncture, your response is immaterial" and referred to "the dubious excuse provided". Dr Salby stated that he had "been concentrating on research, my purported role in this organization - not on fielding the latest synaptic impulse from the newest manager". He further contended that there had been "[n]o contact from a class convener" and that "[r]earranging the teaching of a couple of hours of class … would be a trivial exercise"; and Associate Professor Beggs sending a further email on 22 February 2013 to Dr Salby headed: "Directive re overseas trip April/May 2013". In the email Associate Professor Beggs confirmed that he had been "unable to approve your request to be absent from duty" and expressed some concern that "you have every intention of ignoring my decision regarding this period of absence". The email concluded in relevant part: Therefore, I thought it best to write to you again in order to clarify the situation. As your direct supervisor, please note the following directives: You have been allocated a teaching load for Semester One including the period 03 April to 02 May 2013. Therefore there is a clear expectation that you will be attending work during this period. The University has not and will not authorise your overseas travel for the period 03 April to 02 May 2013. This trip has not been approved. The University will not be liable for any costs incurred by you in regards to this overseas trip. 117 There was, contrary to Dr Salby's submission, no "untimely rejection" of his request for travel in 2013. It may not have been the outcome desired by Dr Salby, but that does not make the final decision "untimely". 118 There can be no question that Dr Salby's travel overseas was not authorised and, moreover, that he knew it was not authorised. During his cross-examination there was, accordingly, the following exchange: And what you were going to do was you were going to just ignore all these directions and you were going to go on this trip, come what may; isn't that right? - No, actually what I was doing was complying with the university's policy for dispute resolution, which prohibits the actions that were taken by Beggs and Mr Baldock. You were going to go on that period of leave, come what may, weren't you? - In fulfilment of the policy that was imposed upon me by the University. Your period of leave was not authorised, was it? - The authorisation - the travel forms were not authorised. And you wouldn't have submitted a document for authorisation unless you were well aware that you needed the authorisation of the university to go under travelling? - I - I submitted the forms the same way I always submitted them. And when they were rejected you knew from that that you had no authorisation to take the travel, did you? - I did not have authorisation from Mr Beggs. Well, you didn't have authorisation from Mr Baldock either, did you? - I had authorisation to implement those resources of the travel by the Dean of the Faculty of Science. 119 The reliance sought to be placed by Dr Salby upon: the fact that the overseas bookings he had made on the University credit card for travel and accommodation were non-refundable; his unilateral decision as to the manner in which the "interests" of the University were to be furthered; and recourse to the Startup Fund was misplaced. He needed authorisation to travel and he did not have it. 120 The fact that the travel expenses had been debited to the University credit card meant that Dr Salby would suffer no immediate personal loss if the monies were not refunded. More fundamental was the fact that the University credit card should not have been used at all. As Associate Professor Beggs explained, the University's "Credit Card Policy" provided that "University corporate credit cards could only be used for travel related expenses in accordance with the University's Travel Policy and that airfares were not acceptable use (as airfares were to be invoiced to the University by the contracted travel supplier, i.e., Campus Travel or STA)." 121 Dr Salby's reliance upon a series of documents, including a document headed "Statutory Declaration", setting forth details of earlier travel arrangements in June to July 2008, was also misplaced. Such documents were not before the primary Judge. Leave was implicitly sought to adduce fresh evidence on appeal pursuant to s 27 of the Federal Court Act. Although those documents were included in a bundle of documents upon which Dr Salby proceeded to advance his appeal, Counsel for the Respondents objected. To permit Dr Salby to rely upon those documents would potentially prejudice the University and deny it the opportunity to itself adduce evidence relevant to the circumstances in which earlier travel arrangements may or may not have been authorised: NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [42] per Beaumont, Lindgren and Tamberlin JJ. Even if Dr Salby were permitted to rely upon these documents, however, the fact that approval may have been granted in 2008 says nothing relevant to the lack of authorisation to travel in 2013. 122 It perhaps matters not whether leave to rely upon this series of documents is granted or refused. Even if leave were granted, the documents took the matter of present concern no further. Leave to rely upon these documents is nevertheless refused. 123 There is no substance in Dr Salby's criticism of the primary Judge's finding that "it was unprecedented for an academic to take a period of five weeks travel during a teaching semester": [2016] FCCA 3 at [484]. As the Judge noted, such was the "overwhelming evidence from Dr Poulsen, Dr Beggs and Mr Sprague…". Dr Salby's attempt to characterise the research travel as not "occupy[ing] five weeks" and as "less than four weeks" involves an innovative exercise in calculation which is not readily apparent by recourse to a calendar. Nor can he avoid the fact that the research travel was not approved upon the basis that the teaching responsibilities that had been allocated to him were "invalid". His responsibilities included the giving of lectures when directed to do so or as may be allocated to him. Associate Professor Beggs had informed Dr Salby that he was to teach. Even if any failure on the part of Associate Professor Beggs to undertake a Performance Development Review could be relied upon as a reason for rejecting any responsibility to teach the lectures directed, it was Dr Salby who had frustrated the Performance Development Review process. 124 Dr Salby's submission that the travel was "integral to [his] principal duties - to foster Macquarie's recognition in research" fails to recognise that he needed approval to travel and that he had no such approval. It was not Dr Salby's unilateral decision as to when he went overseas and what he saw as best "fostering" the University's standing.

[25]

The suspension - the allocation of teaching responsibilities 125 The teaching duties the University required Dr Salby to perform were the source of disagreement. 126 What is apparent is that: on 31 January 2013 Associate Professor Beggs forwarded an email to Dr Salby stating that he had made available the week from 14 January to 18 January 2013 "for all the Department's fixed-term and continuing academic staff … to consult with me regarding 2013 teaching workload allocation". The email continued on to state that "[b]ecause you did not take that opportunity (or communicate with me in any way since that time), I am emailing you your draft 2013 teaching workload allocation"; on 20 February 2013 Dr Salby sent an email to Associate Professor Beggs stating that the "teaching duties you have designated are in contravention of my appointment" and that "[t]hey are not acceptable"; and on 21 February 2013 the Executive Dean, Professor Clive Baldock, emailed Dr Salby stating that he was "formally directing you to follow the University's lawful and reasonable directive to comply with the workload allocation given to you on 31 January 2013" and that "[f]ailure to comply with this directive may result in the University commencing proceedings against you for misconduct/serious misconduct…". What is also apparent is Dr Salby's attitude to the direction he had been given on 21 February 2013. In cross-examination, for example, the text of the direction was read to Dr Salby and the following exchange occurred with his cross-examiner: And that was as clear a direction as you could receive from the Executive Dean of the Faculty of Science; correct? - Well, I don't know if it's as clear, but that's what he said. I received it. And the consequences of not complying with the direction were also readily apparent to Dr Salby, as exposed by the following exchange: And you knew that there would be students at the University turning up to attend this lecture and the University was relying upon you to be there to deliver this lecture; correct? - Well, I - I - I received this message. I had already informed Mr Beggs that I objected to his teaching assignment, and he did not undertake any discussion with me. Dr Salby's refusal to accept the "reasonable direction" in full knowledge of the consequences to the students was thus beyond question. The Federal Circuit Court Judge was correct in rejecting Dr Salby's contention that the workload allocation was "invalid" because Associate Professor Beggs had no authority to make such an allocation. 127 Separate entirely from any question as to whether Dr Salby was required to teach any course during that period of time for which he sought approval to travel overseas is the fact that: on 25 February 2013 Associate Professor Beggs forwarded an email to Dr Salby requesting him to confirm that "you will give the first/introduction ENVE216 The Atmospheric Environment lecture on Wednesday this week (27 February) starting at 11:00am and finishing at 12:00pm in W5A 105"; and Dr Salby did not give that lecture. 128 On 28 February 2013 the Director of Human Resources at the University, Mr Tim Sprague: wrote to Professor Dowton in his capacity as the Vice-Chancellor of the University asking him to give consideration to whether Dr Salby should be suspended "at all" and "if so, whether to suspend without pay". Two primary reasons were advanced for the consideration of the Vice-Chancellor: Dr Salby's failure to teach and the Faculty's expectation as to "consistency in the delivery of programs"; and the fact that that expectation had "already been challenged by Professor Salby's refusal to teach"; and wrote to Dr Salby a confidential letter. The letter to Dr Salby relevantly stated that: it was alleged that Dr Salby had "failed to follow a lawful and reasonable direction from the Executive Dean, Professor Clive Baldock, on 21 February 2013" requiring Dr Salby "to comply with the workload allocation given to [him] on 31 January 2013"; and that the Vice-Chancellor (Professor Dowton) had given "consideration as to whether your employment should be suspended pending progression of the matter" and had considered the matter and had asked Mr Sprague "to inform you that you are hereby suspended from duty without pay to take effect immediately until further notice". 129 The Federal Circuit Court Judge concluded that the decision to suspend Dr Salby was based upon Professor Dowton's assessment that "a failure to teach a course by a senior academic was a serious matter and that the deliberate defiance of instructions from superiors warranted suspension without pay": [2016] FCCA 3 at [455]. 130 Dr Salby's reliance upon what he characterised as an invalid allocation of teaching responsibilities is factually misplaced - as is his submission that he was exercising a workplace right. 131 Dr Salby's further contention of present relevance on appeal is that the "suspension" was occasioned, not by the failure to teach a course, but rather because he had lodged a complaint. That contention is also factually misplaced. 132 The Federal Circuit Court Judge considered the evidence and made a finding of fact which was readily open to him upon the evidence. There is, moreover, no reason to question the finding made by the Federal Circuit Court Judge.

[26]

The misconduct proceedings 133 Dr Salby's challenge to the manner in which the University conducted the misconduct proceedings against him are summarised in his characterisation of the process as a "Moscow Show Trial". 134 In summary form, the relevant chronology in respect to the misconduct proceedings - interspersed with correspondence from the solicitors then retained by Dr Salby - is as follows: 5 March 2013 Notification to Dr Salby of the allegation that he "failed to comply with directions given … by the University to undertake teaching as part of your duties as an academic staff member of the University". Particulars of that allegation are provided and Dr Salby is given until 19 March 2013 to respond. 11 March 2013 Dr Salby's solicitors forward a letter to Professor Dowton referring to his suspension on 28 February 2013 and requesting that he be "immediately reinstated". The letter details 6 previous "attempts" to "resolve these and other employment issues" and stating that these attempts "have come to no avail". 14 March 2013 Mr Sprague responds to the solicitors stating that the University was not prepared to "revoke its decision to suspend Professor Salby without pay and is not prepared to accede" to the demand that he be reinstated. The solicitors are advised that the time for Dr Salby to respond is extended until 22 March 2013. 15 March 2013 Associate Professor Beggs emails Dr Salby concerning the use by Dr Salby of the "University Corporate Credit Card to pay for airfares". Dr Salby is invited to "confirm by close of business on Tuesday 19 March 2013, that you have cancelled all travel arrangements …". 22 March 2013 Dr Salby's solicitors write to Mr Sprague (inter alia) acknowledging the extension of time until 22 March 2013. 25 March 2013 Mr Sprague writes to Dr Salby's solicitors "advising that the University will be putting further allegations of misconduct/serious misconduct to Professor Salby regarding possible incorrect use of his Macquarie University Corporate Credit Card for unauthorised overseas travel". 28 March 2013 Notification to Dr Salby of an allegation that "you have used your Macquarie University Corporate Credit Card …. to book and pay for travel and accommodation for an overseas trip from 3 April 2013 to 2 May 2013" in contravention of stated policies and directions. Particulars are again provided. A response is invited by 16 April 2013. 2 April 2013 Dr Salby's solicitors write to the University notifying it that Dr Salby "is not presently available" but stating that a "complete response to your letters will be forthcoming from him in due course". 135 Thereafter, on 11 April 2013 Dr Salby was advised by both mail and email that a Misconduct Investigation Committee had been appointed, comprising a chairperson external to the University and two other members. Dr Salby was advised of the names of these persons and advised that the Committee would convene at 10.00am on Wednesday 24 April 2013. The Committee deferred consideration of the second allegation made against Dr Salby, dealing with his use of the University corporate credit card, until 9 May 2013. The Committee reconvened on 9 May 2013 and considered the second allegation. Separate Reports were submitted to the University in respect to each allegation. 136 On 15 May 2013 the Acting Director of Human Resources (Mr Nick Crowley) wrote to the Deputy Vice-Chancellor (Provost) Professor Judyth Sachs advising her of the terms of the 2011 Agreement and annexed a copy of the relevant terms of that Agreement and, in particular, cl 4.12.23. That clause provides as follows: 4.12.23 The [Deputy Vice-Chancellor] will: (a) advise the Staff Member of his/her decision regarding what disciplinary action, if any, is proposed to be taken; (b) if any disciplinary action is proposed to be taken, invite the Staff Member to advise in writing, within five working days, about any matters that he or she wants the DVC to take into account in making a decision about what disciplinary action is to be taken; (c) consider any matters brought to his/her attention by the Staff Member when deciding what, if any, disciplinary action should be taken; and (d) if any disciplinary action is to be taken, advise the Staff Member of his/her final decision about what disciplinary action is to be taken, and of the operative date of any disciplinary action to be taken. 137 On 20 May 2013 Professor Sachs wrote to Dr Salby advising him that she had considered the Reports and was "proposing that the University take disciplinary action in the form of termination of your employment". The letter concluded: Once again, I have considered the information before me regarding this matter and I have formed the view that your conduct, as set out in the allegations and established in the MIC Report, amount to serious misconduct. Therefore in accordance with clause 4.12.23(a) of the Enterprise Agreement, I am proposing that the University take disciplinary action in the form of termination of your employment. In relation to both matters, I now refer you to clause 4.12.23(b) of the Enterprise Agreement and invite you to advise me about any matters that you want taken into account before a final decision is made about what disciplinary action is to be taken. I have been provided with a copy of your correspondence dated 7 May 2013 addressed to Mrs Janice McLeay and I will consider this, along with any other matters you wish to advise me of, before reaching a final decision. If you choose to do so, the Enterprise Agreement requires you to provide me with this information within 5 working days of this written advice, that is no later than close of business Monday 27 May 2013.

[27]

The challenge to the procedure followed 138 Dr Salby's challenge to this process was advanced as part of his contention that his "adverse action" claims had been determined by the Federal Circuit Court Judge incorrectly. Within that rubric, Dr Salby contended that the University had: proceeded in his absence; blocked access to his records, which he "required to assemble a defense"; and cancelled his return ticket to Australia, "stranding [him] overseas while they held their proceedings against him". Reliance was also placed upon the statement made in the Deputy Vice-Chancellor's 20 May 2013 letter that Dr Salby was required to provide information he wanted taken into account "within 5 working days of this written advice". 139 Each of the matters relied upon, Dr Salby contended, denied him an "opportunity to be heard". The denial of the opportunity was exacerbated, on his case, by reason of the fact that: he had earlier stated on 7 May 2013 that "a response … would be forthcoming"; and he "had just completed 30 hours of travel from the other end of the Earth". "By preventing his defense against Beggs' allegations", Dr Salby contended that the University had "remov[ed] employment protections … in contravention of FW Act ss 340(a) and (b) and 342(1)1(b)(c)[sic]". Although cl 4.12.23(b) of the 2011 Agreement expressly provided for an opportunity to make submissions "within five working days" of the 15 May 2013 letter, and although five days were in fact extended to Dr Salby, he nevertheless contends that he was not given an adequate opportunity to respond. 140 Dr Salby's case on appeal thus remained focussed upon those matters referred to in his submissions. What remained unexplained was: why he did not respond to the University's letters dated 5 March 2013 (concerning the first allegation) and 28 March 2013 (concerning the second allegation) prior to his departure for overseas on 3 April 2013 - or, at least, foreshadow that he was intending to travel overseas in disregard of the directions given to him that such travel was not authorised and seeking an extension of time until after his return within which to respond; or why a response was not provided to the Deputy Vice-Chancellor's letter dated 20 May 2013 requiring a response by 27 May that year - or, at the very least, why a request was not made of the Deputy Vice-Chancellor for further time in which to respond. By that time, of course, Dr Salby had been back in Australia for some weeks. Also left largely unexplained was: what further information was required to be accessed by Dr Salby, including the information within his office to which he was said to have been denied access, of relevance to the allegations made. But even if such information could be identified, by reference to (for example) the material canvassed during the course of the hearing before the primary Judge, no submission was made to the Deputy Vice-Chancellor that access to any such further information was necessary before a proper response could be provided. 141 The two letters setting forth the allegations against Dr Salby were detailed and attached to the materials relied upon. The allegations were within a narrow compass. Had Dr Salby provided a response it may confidently be predicted that it would have been as factually extensive as the facts canvassed in this proceeding. 142 But no conclusion, it is respectfully considered, was open that Dr Salby had not been extended a period of five days within which to respond, as specified in the 15 May 2013 letter and as required by cl 4.12.23(b) of the 2011 Agreement. Nor is any conclusion open, more generally expressed, that Dr Salby had been denied a "reasonable opportunity" to respond. Within the context of public law, it is readily acknowledged that the concern of the law is to avoid "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, (2003) 214 CLR 1 at 14. Gleeson CJ there concluded: [37] … Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. [38] No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. 143 The fact is that the proceedings before the Misconduct Committee conducted on 24 April and 9 May 2013 were conducted in the absence of Dr Salby. A submission was faintly advanced by Counsel that the University was not to know that Dr Salby would be absent as the University could not anticipate that Dr Salby would ignore the direction given to him on 21 February 2013 that his overseas travel was not approved. That submission is rejected. In that email, Associate Professor Beggs stated that Dr Salby's previous response indicated that "you have every intention of ignoring my decision regarding this period of absence". Nothing that later happened could have altered that expectation. 144 But where the University was on solid ground was that it ill behoves a person to complain of a lack of an opportunity to be heard in circumstances where he deliberately removes himself from the country and thereby precludes himself from availing himself of the benefits of any such opportunity. It was not up to Dr Salby to unilaterally dictate to the University when a hearing was to be conducted. The University was also on solid ground in contending that it had extended an opportunity for Dr Salby to respond - and that he had failed to do so - prior to his departure overseas. 145 Dr Salby's further contention that it was not open for a decision to be made in circumstances where proceedings were pending before the Fair Work Commission was rightly rejected by the Federal Circuit Court Judge and for the reasons given: [2016] FCCA 3 at [487] to [489]. As the primary Judge correctly concluded: [490] Dr Salby's claim fails fundamentally because the fact of the proceedings pending before the Fair Work Commission was not any part of the reasons for Professor [Sachs'] decision to terminate Dr Salby.

[28]

PROCEDURAL FAIRNESS 146 Dr Salby's allegation that there had been a denial of procedural fairness was not an argument expanded upon in his Particularized submissions. 147 But it was a ground included in the Amended Notice of Appeal. 148 Although there was some vacillation on the part of Dr Salby, it emerged that he sought to contend that there had been a denial of procedural fairness both on the part of: the University in denying him access to documents which were necessary for him to properly respond to the complaints about his conduct; and the Federal Circuit Court Judge. Neither argument should be permitted to be canvassed on this appeal. 149 As to the former argument, there was missing from Dr Salby's: Points of Claim as filed in the Federal Circuit Court; and his Submissions in Reply as filed in that Court any clearly articulated argument that would have put the Federal Circuit Court Judge on notice that an argument in need of resolution was an alleged denial of procedural fairness on the part of the University. Diverse and repeated references in submissions to an assertion that the University had obstructed Dr Salby's access to his records fell well short of an articulated argument as to a denial of procedural fairness. 150 As to the latter argument, it would appear that Dr Salby sought to contend on appeal that the Federal Circuit Court Judge had limited his access to documents and that without considering the entirety of the documents Dr Salby wished to place before that Court it was not possible to form any view "on the entirety of the evidence" as to whether the reverse onus of proof had been properly discharged in accordance with the decision in Barclay. 151 That latter argument seemed to emerge for the first time in the Amended Notice of Appeal. The argument should not now be permitted to be raised for either of two reasons, namely: the argument seems to challenge interlocutory decisions made by the Federal Circuit Court Judge well after the time has expired in which any such challenge could properly be brought; and, irrespective of the former reason: such materials as were relied upon by Dr Salby were so incomplete that no view could be formed about the circumstances in which access to documents was first raised and the manner in which it had been resolved. On the materials available, there did not emerge any real basis upon which any such argument would have any prospect of success.

[29]

CONCLUSIONS 152 The appeal necessarily fails when it is concluded that: irrespective of whether the Australian Workplace Agreement should or should not have been registered, Dr Salby has failed to establish any breach on the part of the University of his contract of employment; no misleading statement had been made by the University; the University took no "adverse action" against Dr Salby by reason of his exercising any "workplace right"; and the misconduct proceedings were conducted in accordance with law and the decision to terminate Dr Salby's employment was also lawfully made. 153 The appeal also necessarily fails because Dr Salby has failed to establish any appellable error in respect to any of the findings of fact made by the primary Judge. A number of the factual contentions advanced by Dr Salby have been examined, free of any constraint upon this Court acting as an appellate court. Those factual contentions, albeit not the entirety of the factual contentions advanced on appeal, were examined with a view to testing the manner in which the primary Judge had proceeded and whether a finding made by the primary Judge actually concealed some misunderstanding of the evidence. But all such findings were soundly based. Certainly none disclosed any error susceptible to challenge on appeal as discussed in Robinson Helicopter Co. 154 Notwithstanding the selection of those factual contentions which are expressly canvassed, each of the submissions advanced by Dr Salby have been individually considered. None have any merit. Each is subject to the same conclusion that Dr Salby seeks to seize upon, for example, one particular fact or exchange of emails and to divorce that example from the factual context in which it occurs. 155 In the absence of any appellable error being identified in respect to the factual findings made by the primary Judge, to canvass in greater detail each of the factual submissions advanced on appeal would be to trespass well beyond the role of an appellate court. No basis has been exposed by Dr Salby in respect to any of the factual findings made by the primary Judge to warrant his submissions again being entertained solely with a view to this Court (possibly) making a different finding of fact. 156 No appellable error has been exposed by Dr Salby in respect to any of the primary Judge's details findings and reasons for decision. The error on the part of the primary Judge as to it being Professor Dowton who terminated the employment of Dr Salby ([2016] FCCA 3 at [1]) rather than Professor Sachs exposes nothing other than a momentary lapse, as other references to the reasons for decision demonstrate ([2016] FCCA 3 at [139], [140] and [267]). That one error is non-prejudicial. 157 The appeal should be dismissed. It is without merit. There is no appellable error in respect to any of the factual findings made by the primary Judge and none is discernible by a more detailed examination of the evidence than is warranted.

Salby v Macquarie University

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Judgment (30 paragraphs)

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Legislation Cited (7)

Cases Cited (20)